In re: BELLSOUTH CORPORATION, Petitioner.
Nos. 02-15362, 02-15445.
United States Court of Appeals, Eleventh Circuit.
June 17, 2003.
341 F.3d 941
In re: Terry Price and Lehr, Middlebrooks, Price & Proctor, P.C., Petitioners.
Both parties argue that the district court can nevertheless give retroactive effect to Amendment 632 if it is clarifying rather than substantive—they dispute only whether it is clarifying or substantive. The premise is mistaken, however. The question whether an amendment to the guidelines is clarifying or substantive goes to whether a defendant was correctly sentenced under the guidelines in the first place, not to whether a correct sentence has subsequently been reduced by an amendment to the guidelines and can be modified in a proceeding under
The judgment of the United States District Court for the District of New Mexico is AFFIRMED. The mandate shall issue forthwith.
Marc Gary, BellSouth Corp., Paul T. Stagliano, BellSouth Telecommunications, Inc., Legal Dept., Atlanta, GA, Kumiki S. Gibson, Williams & Connolly, LLP, Washington, DC, George A. Stohner, Morgan, Lewis & Bockius, LLP, New York City, for Petitioners.
Byron Renard Perkins, Roderick T. Cooks, Gordon, Silberman, Wiggins & Childs, P.C., Albert Loring Vreeland, II, Lehr, Middlebrooks, Price & Proctor, P.C., Birmingham, AL, Suzette Marie Malveaux, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Cyrus Mehri, Gouri N. Bhat, Steven A. Skalet, Mehri & Skalet, PLLC, Washington, DC, for Appellee.
Before TJOFLAT, ANDERSON and CUDAHY,* Circuit Judges.
ANDERSON, Circuit Judge:
In these consolidated cases, we are called upon to consider the appropriate course of action where a party is accused of contriving to engineer the recusal of a district judge by hiring a close relative of the judge as counsel. Petitioners seek a writ of mandamus compelling the district court to vacate its order disqualifying attorney Terry Price (“Price“) and his law firm, Lehr Middlebrooks Price & Proctor (“LMPP“), from representing BellSouth in a putative class-action race discrimination suit, Jenkins v. BellSouth Corp.
For the reasons that follow, we cannot conclude that Petitioners have met the heavy burden of showing entitlement to the extraordinary remedy of mandamus. However, our consideration of this matter reveals that the issues involved are difficult, sensitive, and important.
I. BACKGROUND
A. The Law Governing Judicial Recusal
A federal judge must disqualify himself from consideration of a case if a person within the third degree of relationship “[i]s acting as a lawyer in the proceeding(.)”
B. History of Recusal Concerns in the Northern District
It has long been a matter of concern that parties in the Northern District of Alabama might be taking strategic advantage of the recusal statute to, in effect, “judge-shop.” See Robinson v. Boeing Co., 79 F.3d 1053, 1055-56 (11th Cir.1996) (discussing district court‘s suspicion “that in this district the choice of lawyers may sometimes be motivated by a desire to disqualify the trial judge to whom the case has been randomly assigned.“). In particular, it is well-documented that Judge Clemon has been forced to relinquish numerous cases because of the participation of Price and/or a firm in which he is a partner.
Such was the case in Robinson. There, the defendant in a putative class-action employment discrimination case assigned to Judge Clemon sought permission to add as additional trial counsel the firm of Constangy, Brooks & Smith (“Constangy“), in which Price was then a partner. The motion for leave to add counsel was transferred to a different district judge, who denied it. The court found that, because Judge Clemon had been overseeing the case for fifteen months, the disruption occasioned by Price‘s appearance—and the judge‘s resulting recusal—could not be tolerated absent any indication of “an overriding need” for the Constangy firm‘s services. The court observed that no amount of scrutiny would ever yield “a confession or ‘smoking gun‘” indicating that a particular firm was hired with the intent of forcing the judge to relinquish the case, and the court made no finding that the defendant in Robinson acted with such motive. It merely concluded that, because of the late stage of the case, the movant faced a heightened burden to justify the addition of counsel, which it had failed to meet.
We affirmed. We found that delay was a permissible basis for a court to deny leave to add counsel in the middle of litigation, and that the denial did not infringe any fundamental right to the choice of counsel. In so concluding, we set forth a non-exclusive list of factors for courts to consider in evaluating such motions: “the fundamental right to counsel, the court‘s docket, the injury to the plaintiff, the delay in reaching decision, the judicial time invested, the expense to the parties objecting, and the potential for manipulation or impropriety.” Id. at 1055. In recognition of the elusiveness of this final factor, we advised that “[t]his potential for manipulation or impropriety may be considered, without making specific findings, a difficulty the deciding judge reflected upon in his opinion.” Id. at 1056.
We appended to our decision in Robinson the district court‘s order in Crowder v. BellSouth Telecomm., No. 95-AR-1270-S
C. The Standing Order
As a result of these and other troubling cases, the Northern District adopted a “Standing Order” effective July 12, 1996, to govern the consideration of motions to add or substitute counsel where such appearance would raise a conflict with the assigned judge. It states in pertinent part:
[T]he appearance in any civil case pending in this court by any counsel in addition to, or in substitution of, a previously-appearing counsel for the same party shall, if such appearance would or might constitute grounds for recusal or disqualification of the judge to whom the case is assigned (which did not already exist by reason of the identity of the previously-appearing counsel), be ineffective until such time that a motion, seeking leave to add or substitute such new counsel, is approved by a district judge or magistrate judge of this court.... There shall be a strong, but rebuttable, presumption that the reason for such a proposed addition or substitution of counsel is to cause recusal or disqualification of the assigned judge; and the judge to whom such motion is referred may also consider the disruptive effect, if any, reassignment of the case to another judge would have upon the court and other parties.
Courts in the district have been asked to apply the Standing Order several times in cases assigned to Judge Clemon in which Price appeared. In two cases brought to our attention, courts declined to invoke the presumption of wrongful intent, because Price and LMPP had appeared from the outset rather than as substitute or additional counsel. See Pierson v. Hardee‘s Food Sys., Inc., No. CV 98-C-3049-W (Unpublished Order, Jan. 25, 1999); Grant v. Nat‘l Linen Serv., No. CV-97-2853-S (Unpublished Order, Feb. 23, 1998). In a third case, the court eschewed the presumption rather than pass on its constitutionality, and applied the Robinson factors with no thumb on the scale. Wright v. Circuit City Stores, No. 97-C-0776-S (Unpublished Order, Nov. 23, 1998).
D. The Jenkins Case
The underlying case here, Jenkins v. BellSouth Corp., is a class-action race discrimination action. The plaintiffs allege that BellSouth employs a selection process for promotion into managerial positions that discriminates against African-Americans in violation of
As required by Local Rule, the plaintiffs filed a “civil cover sheet” accompanying their Complaint, which asked whether the case was related to any pending litigation in the Northern District. The plaintiffs indicated that the case was related to Wright v. South Central Bell, a class-action employment discrimination case in which Judge Clemon had conducted a bench trial but not yet issued a decision. The newly filed Jenkins case was also assigned to Judge Clemon.
Eleven days after the Complaint was docketed, an “Entry of Appearance” was docketed for Price—now a partner in the Birmingham firm of Lehr Middlebrooks Price & Proctor (“LMPP“)—and two out-of-town attorneys from Morgan, Lewis & Bockius. The notice of appearance was
The plaintiffs moved to disqualify Price and LMPP from participating in the case. They alleged that BellSouth deliberately chose Price and his firm so as to compel Judge Clemon to disqualify himself. In response, BellSouth filed a “notice of newly discovered fact,” stating in part that defense counsel had become aware that another of Judge Clemon‘s nephews, Billie Clemons Jr., was an hourly employee at BellSouth and thus a potential member of the plaintiff class, which would require Judge Clemon to recuse regardless of Price‘s participation.
Judge Clemon directed that the motion to disqualify counsel be assigned to another district judge. The Clerk‘s Office randomly assigned the motion to United States District Judge C. Lynwood Smith, Jr. Judge Smith conducted an evidentiary hearing to elicit testimony both about the circumstances of BellSouth‘s hiring of LMPP and about whether plaintiff‘s counsel improperly steered the Jenkins case to Judge Clemon by falsely claiming that it was related to the Wright case. As to the latter issue, the Chief Deputy Clerk of Court testified that assignments are randomly generated regardless of whether a party claims another case is related, so that the plaintiff‘s entry on the intake form had no effect on the selection.
E. The Decision Below
Judge Smith issued a Memorandum Opinion on August 26, 2002, granting the motion to disqualify Price and the LMPP firm. The opinion recites in detail the history of Judge Clemon‘s forced recusals. Among them were two cases—Crowder, supra, and Carroll v. BellSouth Telecomm.—involving the same defendant as the instant case.2
Judge Smith began by recognizing that, while the Due Process Clause guarantees a defendant in a civil case the right to legal representation, there is no absolute constitutional guarantee of the attorney of one‘s choice. Among the restraints on a party‘s choice of counsel, he recognized, is that an attorney may not be hired as a device to manipulate the orderly administration of justice. Although a court normally must find “compelling reason” to override a party‘s choice of counsel, the court found that a sham hiring for the purpose of forcing the judge‘s recusal is a sufficiently compelling reason.
The court then discussed the proper analytical model to apply to a motion to disqualify. Plaintiff urged the court to follow Woods v. Covington County Bank, 537 F.2d 804 (5th Cir.1976), which coined a two-part test for disqualification: (1) a specifically identifiable appearance of improper conduct and (2) a likelihood that public suspicion generated by the apparent misconduct will outweigh the benefit of the lawyer‘s continued participation. The court observed that the binding force of Woods was in doubt because it relied in part on the now-outdated prohibition in Canon 9 of the Model Code of Professional Responsibility against engaging in conduct that creates even an appearance of impropriety. However, the court found that Woods and its principles retain persuasive value.
The court then turned to the evidence surrounding BellSouth‘s retention of the LMPP firm. It recounted the testimony of BellSouth‘s chief in-house employment counsel, who testified that, after the company was sued for race discrimination in the Southern District of Alabama, the company contacted Price to see if he would be available “in the event that similar litigation were filed in Birmingham.” Although that conversation took place in approximately July of 2001, before the case was filed or assigned to a judge, the court regarded as suspicious BellSouth‘s interest in Price only if a case were brought in the Northern District.3 The district court placed even greater importance on the fact that BellSouth had already been represented for 14 months by competent and well-respected attorneys from another Birmingham law firm in the related litigation in the Southern District of Alabama.
The court then discussed BellSouth‘s history of retaining Price as counsel. Based on a computer analysis by court staff, Price was retained in only four of the 204 cases in which BellSouth was sued in the Northern District of Alabama since 1991. Although the 204 cases were divided among 19 different judges, three of the four Price cases were initially referred to Judge Clemon, forcing his recusal. The court found the fourth case to be of dubious value, since the appearance was entered only after the Jenkins controversy developed, suggesting it may have been contrived. Applying the presumption in light of the foregoing evidence, the district court found that the reason for the selection of Price as counsel was to cause the recusal of the assigned judge.
Even setting aside the presumption, the court, in an alternative holding, found that it would reach the same decision applying the factors enumerated by this Circuit in Robinson, supra, that a court should consider in exercising its discretion whether to allow an addition or substitution of counsel. The court found only a “diluted” impact on the defendant‘s right to counsel, because Price and LMPP were merely local counsel to the larger and more prominent Morgan Lewis firm. Thus, it found no “overriding need ... of constitutional proportions” for BellSouth to be represented by Price as opposed to any other attorney. On the other side, the court found no particular expense or injury to the plaintiffs other than that involved in
The court found that the final Robinson factor—possible manipulation and impropriety—was “the heart of this matter.” Viewing this case in the context of the aforementioned unfortunate history of forced recusals, including the several involving this same defendant, the court found that BellSouth was on notice that hiring Price in cases assigned to Judge Clemon “would subject it to court scrutiny.” The court observed that the potential for tampering with the case assignment process was “obvious.” Placing significant reliance on the unfortunate history, including BellSouth‘s own participation therein, and the fact that BellSouth was already represented in a related case in the Southern District of Alabama by competent Birmingham counsel, as well as the fact that BellSouth knew the case was assigned to Judge Clemon when Price was retained, the district court found that the Robinson balancing pointed to manipulation and therefore to the disqualification of Price and his firm.
Finally, the court rejected BellSouth‘s alternative argument that Judge Clemon was required to recuse anyway because another nephew may be a member of the plaintiff class. Citing Tramonte v. Chrysler Corp., 136 F.3d 1025 (5th Cir.1998), the court found that merely being among those potentially eligible to recover as part of a yet-uncertified class does not give a judge‘s family member a concrete “interest” so as to warrant recusal. The court thus concluded that the plaintiff‘s motion to disqualify Price and his firm should be granted.
Soon after the court issued its Memorandum Opinion, the Chief Deputy Clerk notified the court that she had erred in her testimony at the evidentiary hearing concerning the random assignment of the Jenkins case to Judge Clemon. Rather, the clerk had learned that, in violation of the Clerk‘s normal procedures, an employee had relied on the “related case” designation on the intake form and purposely sent the case to Judge Clemon. In response to this disclosure, the court withdrew the Memorandum Opinion and requested supplemental briefing on whether the non-random assignment required a different result.
After reviewing the parties’ submissions, the court issued a Supplemental Memorandum Opinion on September 13, 2002, in which it reinstated and amplified the initial decision. The court concluded that the Clerk‘s failure to follow the random assignment procedure did not change the rationale for the original decision. The court rejected BellSouth‘s contention that, because the case probably should never have gone to Judge Clemon in the first place, and because a new random drawing was required to reassign the case properly, the motion to disqualify LMPP was moot: “To credit that view, the court would have to ignore the long history of forced recusal of Judge Clemon in this District ... [T]he potential for manipulation and impropriety by a party seeking to retain Mr. Price or
The supplemental opinion expressly found that BellSouth, and perhaps the Price firm, acted with the purpose of forcing Judge Clemon to disqualify. Quoting the Fifth Circuit‘s opinion in McCuin v. Texas Power & Light Co., 714 F.2d 1255 (5th Cir.1983), which dealt with an analogous disqualification motion, the court stated:
“A lawyer should not ... lend himself to a contrivance by which his services are sought not for his ability but solely because his relationship with a judge enables the litigant who employs him to exercise a de facto peremptory challenge to the judge.” ... This is what occurred here, and the court holds that its original decision ... is due to be confirmed. See [McCuin] 1257 (“We conclude that, if the district court should find ... that the sole or primary motive for retaining the relative of the original judge was to disqualify that judge, the lawyer must be disqualified.“)
He also directed that the Clerk reassign the Jenkins case using a neutral and randomized selection procedure. Perhaps ironically, the random drawing resulted in the case being reassigned to Judge Smith. Both BellSouth and Price filed petitions seeking a writ of mandamus directing the court to vacate its disqualification order, thus bringing the matter before us.
II. DISCUSSION
A. Preliminary Issues
Before we reach the substantive issue of whether disqualification was warranted, we must deal with Petitioners’ contention that the district court‘s order cannot stand because of fatal procedural flaws. We reject each of Petitioners’ preliminary contentions.
1. District court‘s refusal to recuse immediately
Price and LMPP argue that the disqualification and all other orders resulting from Judge Clemon‘s order directing that the motion to disqualify be transferred to another judge are void ab initio because, once Judge Clemon learned of the basis for disqualification, he was without authority to take further action in the case. Petitioners chiefly rely on McCuin, supra, in which the Fifth Circuit vacated the order of the conflicted trial judge designating a particular judge to take over the case, including the pending motion to disqualify counsel. The McCuin court found the assignment order invalid because, once the judge‘s relative “acted” in the case by filing a notice of appearance, triggering
These cases, however, involve substantive decisions taken after the court should have recused, which—unlike the judge‘s action here—went beyond mere housekeeping. For instance, in Moody, after declaring at a hearing that he had learned of a conflict that statutorily required his recusal, the district judge kept the case for two more months and entered numerous orders, including one disqualifying two law firms for alleged bad-faith conduct. See id., 858 F.2d at 140, 143. By contrast, Judge Clemon did not pass on any contest-
Petitioners mischaracterize Judge Clemon‘s actions. He did not assign the matter to another judge; he did not designate the judge to hear the disqualification motion. Rather, he merely referred the matter to the Clerk for reassignment, and stayed any matters before him. Judge Clemon‘s action was the functional equivalent of recusing until and unless the randomly assigned new judge should rule otherwise.4 We readily conclude that Petitioners have failed to demonstrate that a writ of mandamus should issue on this account.
2. Mootness
BellSouth and Price further allege that the district court should have vacated its original disqualification order after the random drawing resulted in the case being assigned to a judge other than Judge Clemon. Because the reassignment effec-
The district court found as a fact the existence of an improper contrivance to bring about “a de facto peremptory challenge” of Judge Clemon. That the stratagem ultimately proved to be unnecessary should be beside the point. If there is sufficiently strong evidence that a party and its attorney conspired to interfere wrongfully with the administration of justice, disqualification might well be appropriate even if the conspiracy never came to fruition. A court‘s inherent power to disqualify an attorney or otherwise sanction a party or attorney is rooted in concern for the integrity of the judiciary and the public‘s perception thereof. It does not further those ends to punish only successful attempts at tampering with the judicial process while overlooking unsuccessful ones. The reasons for the disqualification therefore were not mooted. In Kleiner v. First Nat‘l Bank of Atlanta, 751 F.2d 1193, 1200 and n. 14 (11th Cir.1985), we rejected a similar mootness argument. We readily do so here as well.
3. The related case reference
Petitioners argue that their own judge-shopping should be excused because, they argue, the plaintiffs are guilty too. Petitioners contend that the plaintiffs’ reference on the civil cover sheet to the Wright case as a related matter constituted a misrepresentation because, they argue, the cases are not sufficiently related. The district court, after a full evidentiary hearing and briefing by all parties, found no wrongful judge-shopping by the plaintiffs. The court found as a fact that the Wright case—which involved the same principal defendant, the same cause of action, and similar factual allegations regarding the use of promotional tests—was related to this matter, so that its listing on the intake sheet was plausible.5 We see no basis on which to reject that finding as clearly erroneous. See Cossette v. Country Style Donuts, Inc., 647 F.2d 526, 531 (5th Cir.1981) (holding that, on appeal of disqualification motion, we review findings of fact for clear error while carefully reviewing the district court‘s application of relevant ethical standards).
B. Availability of Mandamus Relief
1. Appealability of orders disqualifying counsel
Mandamus is not to be used as a subterfuge to obtain appellate review that is otherwise foreclosed by law. See Ex parte Fahey, 332 U.S. 258, 260 (1947) (mandamus and other extraordinary writs directed at judicial officers “should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as substitutes for appeals.“). Consequently, courts have been hesitant to entertain petitions for mandamus to review the disqualification of counsel in light of the Supreme Court‘s decision in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985), that a party may not take an interlocutory appeal of a disqualification order, and must ordinarily wait to appeal from a final judgment.
Koller was the last of three successive decisions in the 1980s in which the Supreme Court set the standard for when the disqualification of an attorney can be appealed. The first was Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981). In Firestone, the tire company appealed the denial of its motion to disqualify plaintiffs’ counsel on the grounds that the firm had represented Firestone‘s insurance company in earlier, unrelated litigation. The Court held that an order denying a motion to disqualify counsel was not a final decision under
In Flanagan v. United States, 465 U.S. 259 (1984), the Court expanded upon Firestone and held that an order granting a motion to disqualify in a criminal case was also neither a final order nor a collateral order subject to immediate appeal under Cohen. In that case, the trial court had granted the Government‘s motion to disqualify a defense firm from representing multiple defendants in the same conspiracy scheme because one defendant had interests clearly divergent from the rest. The Court recognized that it had allowed for immediate appeal in certain unique circumstances where a defendant asserted a constitutional right not to stand trial at all, such as where a court refused to dismiss an indictment on double jeopardy grounds. In this instance, however, the defendant was merely asserting “a right not to be convicted in certain circumstances,” and that right could be fully vindicated by a successful appeal after conviction. Id. at 267.
The Court considered, but did not decide, whether successfully appealing the disqualification of counsel required a showing that the party suffered prejudice as a result of the denial. If no prejudice was required, the Court said, then the decision could be effectively reviewed on appeal regardless of whether the defendant was convicted or acquitted, since conviction would not be a prerequisite for relief. Thus, the Cohen prerequisites would not be satisfied. On the other hand, if conviction were required, the order would fall outside the Cohen exception for a different reason, because resolution was dependent on the outcome of the underlying case.
Finally, in Koller, the Court synthesized the Firestone and Flanagan rules and held that a district court‘s order granting a motion to disqualify counsel in a civil case was no more subject to immediate appeal than an order denying the motion. In Koller, the district court granted the defendant‘s motion to revoke the pro hac vice admission of one of the plaintiff‘s law firms after finding that its attorneys had improperly leaked information to the media on the eve of trial, forcing a postponement, and had tampered with a witness in a judicial inquiry related to the case. The D.C. Circuit invalidated the disqualification, and the Supreme Court reversed, finding no jurisdiction.
After observing that the disqualification order was not a final order because it did
Observing that it was rare for such a discretionary order to be successfully appealed, the Court said any benefit realized by the occasional reversal of an erroneous disqualification would be outweighed by the delay accompanying piecemeal review. Further, it observed that an attorney aggrieved by an unwarranted disqualification had alternative means of redress: he could seek certification for discretionary appeal pursuant to
2. The law of mandamus
“[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.... Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35 (1980); see also In re Temple, 851 F.2d 1269, 1271 (11th Cir.1988) (mandamus “is to be exercised only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion“); In re Evans, 524 F.2d 1004, 1007 (5th Cir.1975) (“[M]andamus lies only to confine a lower court to its jurisdiction or to compel it to perform ministerial functions over which it has no discretion.“).
The party seeking mandamus has the burden of demonstrating “that its right to issuance of the writ is ‘clear and indisputable.‘” Will v. United States, 389 U.S. 90, 96 (1967) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)); In re American Airlines, Inc., 972 F.2d 605, 608 (5th Cir.1992) (quoting Mallard v. United States Dist. Court, 490 U.S. 296, 309 (1989)). Significantly, a party is not entitled to mandamus merely because it shows evidence that, on appeal, would warrant reversal of the district court. In re Bushkin Assoc., Inc., 864 F.2d 241, 245 (1st Cir.1989).
As noted above, the trilogy of Supreme Court cases—Firestone, Flanagan and Koller—held that disqualification orders are not immediately appealable, but left open the possible availability of mandamus. Following these Supreme Court cases, divergent authority has evolved. As the Seventh Circuit noted in In re Sandahl, 980 F.2d 1118 (7th Cir.1992), some circuits have seemed to permit mandamus to “slide into mere right to relief,” id. at 1121 (emphasis in original), rather than insisting upon a “clear right to relief (‘clear and indisputable,’ as the cases sometimes say).” Id. Sandahl cited as
We agree with the Seventh Circuit. Mandamus is an extraordinary remedy requiring demonstrable injustice or irreparable injury. Consequently, following the lead of Sandahl, mandamus should ordinarily lie to remedy an attorney disqualification order only if the district court order is patently erroneous and the petitioners have shown a clear and undisputable right to relief.
3. Petitioners’ case for mandamus relief
In view of these persuasive cases, we cannot conclude that Petitioners have satisfied the high standard required for issuance of the writ of mandamus. Neither BellSouth nor Price has demonstrated a clear and indisputable right to relief.
In addition, BellSouth has not shown that it will suffer irreparable harm or demonstrable injustice if resolution is delayed until the end of the case. If it wins at trial or settles, then no harm was done. If it loses, it can appeal and raise denial of its chosen counsel as an enumeration of error. The mere possibility that a litigant might have to re-litigate a case is not a sufficiently compelling interest to warrant immediate review. See Firestone, 449 U.S. at 378 (“interlocutory orders are not appealable ‘on the mere ground that they may be erroneous‘“) (quoting Will v. United States, 389 U.S. 90, 98 n. 6 (1967)); Mechem, 880 F.2d at 874 (applying Koller, “[t]hat an erroneous ruling may impose additional cost does not ... satisfy the high standard required for mandamus.“); Maloney v. Plunkett, 854 F.2d 152, 154-55 (7th Cir.1988) (“[O]rdinarily the inconvenience, lost time, and sunk costs of such further proceedings as could have been avoided by correcting the trial judge‘s error are not considered the kind of irremediable harm that will satisfy the stringent requirements for issuing a writ of mandamus.“). Moreover, BellSouth has not presented any facts to indicate that Price‘s counsel is indispensable to its case. To the contrary, the district court found that the company is ably represented by a large, national firm, to which Price was merely local co-counsel.
Price and his firm have a stronger argument with respect to injury, but as our discussion below concludes, they have failed to demonstrate a clear and indisputable right to relief. They have not shown that the district court‘s ultimate decision to disqualify was patently erroneous. While our discussion reveals the possibility of dire consequences or irreparable harm, there are no findings of fact to support same, and the record does not compel such a finding.6
C. Petitioners’ Assertions of Error
1. Constitutional right to choice of counsel; Section 455 required recusal of the judge
BellSouth and Price argue that they have a Sixth Amendment right to counsel that is implicit in the Due Process Clause of the Fifth Amendment, a right that encompasses a lawyer of choice. See Powell v. Alabama, 287 U.S. 45, 68-69 (1932); see also Potashnick v. Port City Const. Co., 609 F.2d 1101, 1117 (5th Cir.1980) (recognizing that due process guarantee of right to counsel extends to civil as well as criminal proceedings). Petitioners fortify their position in this case by arguing that in
While it is true that there is a constitutionally based right to counsel of choice, it is also well established that the right is not absolute. See Wheat v. United States, 486 U.S. 153, 159 (1988) (“[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.“); United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir.1976) (en banc) (recognizing a Sixth Amendment right to counsel in a criminal case, but only a limited right to counsel of choice, and affirming the disqualification of counsel on account of misconduct impeding the orderly administration of justice); see also McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1262 n. 21 (5th Cir.1983) (“While the right to counsel is fundamental, there is no absolute right to a particu-
Before turning to the question of whether the district court patently erred in overriding BellSouth‘s right to counsel of choice in this case, we turn to Petitioners’ similar argument that
When circumstances exist involving the selection of counsel with the sole or primary purpose of causing the recusal of the judge, we believe that the right to counsel of choice can be overridden. The binding decision of the former Fifth Circuit in Dinitz squarely holds that the right to counsel of choice (even in the criminal context of the Sixth Amendment) must yield to the district court‘s discretion to disqualify an attorney for misconduct impeding the orderly administration of justice. 538 F.2d at 1219. Petitioners’ reliance upon
Once the members of a panel assigned to hear an appeal become known or knowable, counsel thereafter retained to appear in that matter should consider whether appearing might cause the recusal of a member of the panel.... It is clear ... that tactical abuse becomes possible if a lawyer‘s appearance can influence the recusal of a judge known to be on a panel. Litigants might retain new counsel for rehearing for the very purpose of disqualifying a judge who ruled against them. As between a judge already assigned to a panel, and a lawyer who thereafter appears in circumstances where the appearance might cause an assigned judge to be recused, the lawyer will go and the judge will stay. This practice preserves the neutral and random assignment of judges to cases, and it implements “the inherent power of this Court to manage and control its docket.”
Id. at 139.10 Our research has uncovered only one other published case addressing, in a different context, an alleged attempt to manipulate the random assignment of cases by retaining counsel related to a judge. In its review of the state‘s Attorney Discipline Board, the Supreme Court of Michigan held as follows:
It is unethical conduct for a lawyer to tamper with the court system or to arrange disqualifications, selling the lawyer‘s family relationship rather than
Grievance Adm‘r v. Fried, 456 Mich. 234, 570 N.W.2d 262, 267 (1997).11 Although only a few courts have addressed the issue, it has been said that “attempts to manipulate the random case assignment process are subject to universal condemnation.” United States v. Phillips, 59 F.Supp.2d 1178, 1180 (D.Utah 1999) (collecting cases and scholarly literature).
Thus, we reject Petitioners’ argument that the district court‘s disqualification decision is patently erroneous in violation of their right to counsel of choice or in violation of
2. Petitioners’ Schlumberger argument
Petitioners’ principal argument relies on the application of Schlumberger Tech., Inc. v. Wiley, 113 F.3d 1553 (11th Cir.1997). In Schlumberger, we held that the district court had improperly denied an out-of-state attorney admission to practice pro hac vice on the basis of the opposing party‘s allegations of unethical conduct. Specifically, the court found there that the attorney, who was representing a corporation suing several of its former officers and directors, had acted improperly during pre-litigation interviews with several of the officers by misleading them into believing that they did not need to retain counsel. We held that, in order to deny pro hac vice admission to an attorney who is a member in good standing of a state bar, a district court must find a violation of a specific ethical rule of such a nature as to warrant disbarment. Id. at 1559. We said there, in pertinent part:
The standards governing disqualification of an attorney already admitted to appear before the district court differ, depending on the circumstances. If the conduct at issue threatens disruption of the court proceedings ... or is a deliberate challenge to the authority of the district court ... we give great deference to a trial court‘s decision to disqualify the responsible attorney. If, however, the conduct at issue does not threaten the orderly administration of justice but is allegedly unethical, we insist that district courts rest their disqualification decisions on the violation of specific Rules of Professional Conduct(.)
Id. at 1561 (citations omitted) (emphasis added). Petitioners contend that before disqualifying Price, the court was required to make a finding that his appearance vio-
In Schlumberger we expressly recognized and reconciled two lines of cases within the circuit involving attorney disqualifications. One line of cases, the line which we found applicable in Schlumberger, involved disqualification based on an alleged ethical violation that did not threaten the orderly administration of justice. There, the higher Schlumberger standard applied. The other line of cases involved conduct disruptive of the proceedings or constituting a threat to the orderly administration of the laws. Id. at 1560. Significant for the instant case is the fact that Schlumberger expressly distinguished Kleiner v. First Nat‘l Bank of Atlanta, 751 F.2d 1193 (11th Cir.1985), as falling within the “orderly administration of justice” line of cases. We discuss Kleiner in some detail because we find it analogous to the instant case in important ways.
There, the attorney involved counseled his bank client with respect to the legality and mechanics of a campaign whereby the bank would communicate ex parte with bank customers in an effort to promote their opting out of the plaintiff class. We held that such communications were in violation of the “unmistakable” import of the district court‘s order in the case, which had taken “the question of informal contacts with class members under advisement,” thus acting “as an order which barred opt-out solicitations and similar communications until further notice.” Id. at 1200. The district court sanctioned the attorney, including disqualifying him from further representation in the case. Id. at 1199. This court affirmed the disqualification of counsel relying upon the inherent power of the district court “to protect the orderly administration of justice and to preserve the dignity of the tribunal.” Id. at 1209. In this regard, the court held:
A trial judge possesses the inherent power to discipline counsel for misconduct, short of behavior giving rise to disbarment or criminal censure, without resort to the powers of civil or criminal contempt.
Thus, it is clear that the Kleiner standard, and not the Schlumberger standard, applies where the conduct at issue threatens the orderly administration of justice. We have no difficulty concluding that a contrivance to interfere with the judicial assignment process constitutes a threat to the orderly administration of justice. Every court considering attempts to manipulate the random assignment of judges has considered it to constitute a disruption of the orderly administration of justice. In McCuin, the Fifth Circuit held that permitting such manipulation would bring
In the instant case, the district court found an attempt to manipulate and to interfere with the random assignment of cases, and because that clearly threatens the orderly administration of justice, this case falls squarely within the line of cases distinguished by Schlumberger and expressly excluded from its ambit. See Schlumberger, 113 F.3d at 1561.14 The instant case is more analogous to Kleiner, supra, and the other cases distinguished by Schlumberger.
For the foregoing reasons, we reject Petitioners’ argument that the district court‘s disqualification decision is patently erroneous for failure to follow the Schlumberger standard.
3. Applicability of standing order
Petitioners’ most persuasive contention is that the district court improperly shifted the burden to them to rebut the “strong presumption” (provided for in the Northern District‘s Standing Order) that Price‘s hiring was motivated by the desire to force recusal. The Standing Order, by its own terms, applies where a law firm whose appearance requires the judge to recuse attempts to enter a case “in addition to, or in substitution of, a previously-appearing counsel.” The district court acknowledged that this case was not strictly within the confines of the Standing Order because Price appeared for BellSouth from the outset. However, the court found the presumption was applicable “by logical extension,” because BellSouth knew that Judge Clemon was assigned to the case and that Price‘s appearance would require him to recuse. This extension, say BellSouth and Price, was error.
We agree with Petitioners that the burden-shifting presumption of wrongdoing in the Standing Order was not operable under these facts. The Northern District adopted the Standing Order against a
Because a party is presumptively entitled to the counsel of his choice, that right may be overridden only if “compelling reasons” exist. Texas Catastrophe Property Ins. Ass’n v. Morales, 975 F.2d 1178, 1181 (5th Cir.1992) (quoting McCuin, 714 F.2d at 1262); see also United States v. Locascio, 6 F.3d 924, 931 (2nd Cir.1993) (recognizing, in criminal case, presumption that party is entitled to counsel of choice, which may be overcome “by a showing of an actual conflict or potentially serious conflict”). The party moving to disqualify counsel bears the burden of proving the grounds for disqualification. Duncan v. Merrill Lynch, 646 F.2d 1020, 1028 (5th Cir. Cir. Unit B 1981); accord A.J. by L.B. v. Kierst, 56 F.3d 849, 859 (8th Cir.1995); see also American Airlines, 972 F.2d at 611 (holding that motions to disqualify are subject to exacting review because of potential for strategic abuse); Evans v. Artek Sys. Corp., 715 F.2d 788, 794 (2nd Cir.1983) (characterizing movant’s task in seeking removal of opposing counsel as “heavy burden”).
Thus, we agree with Petitioners that the district court erred in applying the presumption. However, as noted above, mere error does not entitle one to the issuance of a writ of mandamus. We need not decide whether the presumption error was patent error, because we decline for other reasons to issue the writ because of this error. First, the writ of mandamus should not issue in the absence of a showing that Petitioners have a clear and indisputable right to relief. Petitioners have failed to demonstrate that there was not improper motive, that is, that the district court would not have found improper motive even without the presumption. Second, the district court in the instant case not only found that Price was selected for the sole or primary purpose of causing the recusal of Judge Clemon (a finding that may have been tainted by virtue of using
4. Application of Robinson factors
Putting aside the presumption of the Standing Order, the district court applied the factors we enumerated in Robinson, 79 F.3d at 1055—“the fundamental right to counsel, the court’s docket, the injury to the plaintiff, the delay in reaching decision, the judicial time invested, the expense to the parties objecting, and the potential for manipulation or impropriety”—and found disqualification appropriate. In particular, the court observed that the impact on BellSouth’s right from losing only one of its several attorneys at a very early stage of the litigation would be minimal when weighed against the considerable prospect of improper manipulation of the judiciary if recusal were required.
Petitioners argue that Robinson has no application where, as here, the disputed attorney’s appearance occurs at the outset of the case rather than interrupting it after substantial judicial investment. We agree that Robinson is distinguishable in that regard; Robinson involved an attempt to add Price’s law firm as additional counsel. However, we also believe that Robinson clearly evinces concerns relevant to this case. While it is true that the initial appearance of an attorney who would cause a recusal is likely to produce less disruption to the system with respect to some of the Robinson factors, e.g., the judicial time invested, it is also clear that other Robinson factors are implicated in both situations (e.g., the fundamental right to counsel, the court’s docket, delay in reaching a decision, expense to the parties objecting, and the potential for manipulation or impropriety).16 It is also clear that Robinson evinced a concern about judge-shopping, a concern that is present in both situations.
While we disagree with Petitioners that Robinson is wholly inapplicable, we do believe that the Robinson “factors” are just that. In other words, they were intended as a guide for district courts in the exercise of their discretion with respect to such problems, not as a rigid formula dictating the proper resolution of every case. In this regard, we note that Robinson makes it clear that its factors are not exclusive; rather, the factors to consider merely “include” the listed factors. The relevant factors will vary with the circumstances.
We do believe that the Robinson approach of considering relevant factors is sound. We believe the approach is essentially a balancing approach, weighing the significance of each relevant factor. We agree with the district court that the most significant factor in this case involves the manipulation of the random assignment system.
However, we believe that there is at least one significant factor to which the district court apparently gave little attention. Most of the published cases addressing the issue of a disqualification of a party’s attorney involve disqualification because of a particular instance or instances of misconduct. While the disqualification often would carry the potential for adverse consequences with respect to the attorney’s reputation, the cases usually involve
If a disqualification ruling were, as a practical matter, the functional equivalent of a disbarment or approached that level, then it would seem appropriate that a considerably higher standard be employed.18 We find some support in the case law for this common-sense notion that as the seriousness of the consequences of a disqualification order increases, so too the care and caution exercised by the district court should be enhanced. In the attorney disqualification context of Kleiner, we rejected what appears to have been an argument that a higher standard should apply. We said:
[P]etitioners fail to distinguish between disbarment and the less serious sanction of disqualification from a particular case. The standards are more relaxed for the latter.
751 F.2d at 1210 n.34. The suggestion is that a higher standard might apply in the case of a functional equivalent of disbarment. See also Steadman v. SEC, 603 F.2d 1126, 1139 (5th Cir.1979). There, in the context of reviewing an SEC order indefinitely barring an investment adviser from associating or affiliating with any investment adviser or company, and suspending him for one year from associating with any broker or dealer, we held: “We subscribe to the common-sense notion that the greater the sanction the Commission decides to impose, the greater is its burden of justification.”19
We noted above that, because of the nature of the conduct alleged, the instant case is potentially of a different character from the ordinary disqualification case. We can assume arguendo, without deciding, that a case such as the hypothetical noted above might warrant the exercise of our mandamus powers. However, Petitioners have failed to persuade us that the instant case is the case hypothesized. First, while Petitioners make conclusory assertions of dire consequences to Price’s practice, their rhetoric is factually sparse.20
As the above discussion suggests, to the extent that an attorney disqualification order constitutes or approaches a disbarment or suspension, then to that extent the standard should move toward a finding of improper motive on the part of the attorney, that is, that he knowingly or recklessly lent himself to a scheme to cause the recusal of a judge.
This is not to say that an attorney disqualification order will always or even usually require such a finding on the part of an attorney. For example, a district court could disqualify an attorney upon a finding that the client has selected the attorney with the sole or primary purpose of causing the judge to recuse, even though the attorney was himself duped and could not be said to have lent himself to the scheme. (Of course, the tools available to a court under its inherent authority are not limited to disqualification, and where only the party and not the attorney is found to be culpable, sanctions falling principally upon the party may be warranted.)
It is true that a disqualification order could, even in the absence of a finding that the attorney himself acted in bad faith, nevertheless constitute a chill on the lawyer’s practice. Especially if the scope of the district court’s order is unclear, other clients who honestly seek the lawyer’s services because of his expertise and not because of his relationship might be chilled, desiring to avoid the risk of embarrassment and/or the expense of justifying their intentions should the court misunderstand them. This risk could be reduced in several ways. The order of the district court should be very clear as to its scope. For example, in the instant case, as described below, we read the district court’s opinion much more narrowly than Petitioners (although we acknowledge that the district court could have been clearer in this regard). Thus, a client without a history of retaining Price only when its case is pending before Judge Clemon, and absent other circumstances pointing clearly to manipulation, should have no fear of its honest intentions being misunderstood. Moreover, the lawyer can protect himself from being taken advantage of by an improperly motivated client. The lawyer and his firm could develop and implement procedures to minimize this risk. Simply by way of example, in the instant case, it would have been feasible for the lawyer to have ascertained ahead of time the client’s history of retaining him only in cases like this pending before his uncle. Also, the previous presence of competent Birmingham counsel in the related case should have prompted suspicion and investigation.
- It placed significant reliance upon BellSouth’s history in Northern District of Alabama litigation of retaining Price only in circumstances involving cases before his uncle;
- The district court placed especially significant reliance on the fact that BellSouth had already been represented in related litigation in the Southern District of Alabama “for 14 months by competent and well-respected attorneys in the Birmingham office of the Constangy firm.” The district court considered this to be a fact of “greater importance.”
- It placed significant reliance on the fact that BellSouth was interested in retaining Price in this case only if its extant discrimination litigation in the Southern District of Alabama were expanded to include a suit filed in the Northern District of Alabama.
- It placed significant reliance upon its finding of fact that BellSouth was actually motivated by an intent to cause the recusal of Judge Clemon, and that Price lent himself to that purpose.21
Accordingly, Petitioners have failed to demonstrate that this case rises to the level of the above hypothetical. We do not construe the order to indicate what another district court’s ruling should be, for example, when Price appears initially for a client which did not labor under the history relied upon here and which was not already being represented by competent local counsel in a related case. Indeed, as previously noted, Price has been allowed to remain as counsel in two recent cases initially assigned to Judge Clemon, the Pierson and Grant matters, where he and his firm appeared from the start and the courts did not make a finding of improper circumstances as were found to exist here. It should therefore be obvious, to him and to his prospective clients, that he is not categorically barred from practice in the Northern District of Alabama, even in cases initially assigned to Judge Clemon. In sum, Price and LMPP have not only failed to establish, with sufficient clarity to meet mandamus standards, the dire consequences to their practice that they assert in conclusory fashion, but they have also failed to establish that the district court’s narrow ruling on these facts will operate as the chill they fear. In short, Petitioners have failed to demonstrate a clear and indisputable right to relief.
For the foregoing reasons, we decline to issue the writ of mandamus. While we have noted several shortcomings in the decision of the district court,22 we cannot
CUDAHY, Circuit Judge, concurring:
I join Judge Anderson’s persuasive opinion, but I write separately in part to emphasize several matters which may be unique to my perspective on the case as a visitor to the Eleventh Circuit.
I find myself in the sensitive position of casting the deciding vote (at least pending possible reconsideration by the full court) in a dispute which, if not unique to the Eleventh Circuit, at least has an unusually substantial and controversial history in a judicial district of this circuit. The very problem presented by the case before us is certainly not new. Terry Price and his relationship to Judge Clemon have been a continuing issue in the Northern District of Alabama. See Robinson v. Boeing, 79 F.3d 1053 (11th Cir.1996); N.D. Ala. Standing Order (July 12, 1996). With the locally focused nature of the present case in mind, I have some concern about being thought an interloper in a family affair, but, if this is to be my lot, I will do my best to cast my vote under principles of the broadest application.
The first of such principles to present itself is, of course, the availability of the writ of mandamus. All parties agree that to justify issuance of the writ, the cause supporting its issuance must be clear and indisputable. The majority opinion even cites Seventh Circuit authority to this effect. See In re Sandahl, 980 F.2d 1118 (7th Cir.1992). In terms of the present case, I see two potential errors of the district court that might meet this condition: first, mootness, based on Judge Smith’s failure to rescind the order disqualifying Terry Price once a truly random process had assigned a judge other than Judge Clemon, and second, the issue raised by the dissent, Judge Clemon’s decision to forgo automatic recusal by recourse to its functional equivalent.
The question of mootness may be more difficult than either of my colleagues seems to believe. I do not see this case primarily in terms of “punish[ment]” for an improper conspiracy to “tamper[] with the judicial process” (the basis on which the controversy can be said to have survived the selection of a judge other than Judge Clemon). Maj. op. at 951. Just as much, I see it in terms of an inadmissible conjunction of a judge and an attorney who bear to each other a familial relationship within a degree of consanguinity prohibited by
The dissent’s case supporting the availability of mandamus rests entirely on the proposition that “Congress intended that recusal under Section 455(b) be automatic, without exception.” Dissent at 973. The dissent argues that there was a clear and automatic requirement on Judge Clemon to recuse himself the moment his nephew filed his appearance. In order to support mandamus, this error of nonrecusal would have to be as clear and as indisputable as if the litigation facing the judge involved the merits of his own mother and the judge in question deliberately and defiantly flouted the requirement of impartiality. At most, of course, the present circumstance involves no suggestion of flagrant bias; in fact, the dissent’s claim of clear and indisputable error rests on an essentially technical reading of the statute. That Judge Clemon’s failure to “automatically” recuse himself presents something less than a clear and indisputable right to mandamus relief is demonstrated by the arguments advanced by the respondents and relied on by the majority opinion.
The dissent’s contrary analysis does not succeed, in my estimate, in endowing its point of view with a clear and indisputable quality. The dissent supports its thesis of automatic recusal with recourse to legislative history and presumed legislative intent, and expressly deems permissible the practice of forced recusal as a litigation tactic. The dissent asserts that Congress “undoubtedly realized that sophisticated parties would hire a judge’s third-degree relative to force recusal of a judge they did not want,” and that Congress “must ... have recognized that parties could hire a judge’s third-degree relative for the sole purpose of forcing the judge to disqualify himself.” Id. at 971, 974. Nonetheless, according to the dissent, Congress “accepted this drawback,” in order to prevent “the greater evil” of judges continuing to hear cases argued by their relatives. Id. at 971.
But the dissent cites nothing strongly persuasive for this understanding of congressional intent. For one, I am not convinced that the legislative history dealing with
Nor am I persuaded by the rather impressive parade of horribles hypothesized by the dissent. Dissent at 977-79. Under any circumstances, I cannot see the approach of the majority opinion leading to
Additionally, it seems to me that this court’s decision in Robinson argues against the absolutist position taken by the dissent with respect to the operation of
No doubt the analysis applied by the majority has at least the potential of unjustly burdening Price and his law firm. Every effort must continue to be made to preclude, or at least to ameliorate, this impact. The analysis undertaken by the majority opinion in this respect seems appropriate to this end.
TJOFLAT, Circuit Judge, dissenting:
I respectfully dissent. Because
I.
A.
In 1974, Congress amended
In addition to addressing the appearance of impropriety under
B.
One of the circumstances in which Congress believed there would likely be actual bias on the part of the judge is when the judge’s third-degree relative appears before the judge as a lawyer for one of the parties. Congress enumerated this circumstance in
Congress enacted
Congress recognized that former
Because the judge had so much discretion to refrain from recusing when his relative appeared as a lawyer in a proceeding before him, former
By enacting
If the judge had discretion to decide whether to recuse under
Congress undoubtedly realized that sophisticated parties would hire a judge’s third-degree relative to force recusal of a judge they did not want. By enacting
Under
As in McCuin, Judge Clemon violated
Judge Clemon’s refusal to recuse also violated
Judge Smith’s disqualification of Price and his law firm also violated
C.
Although the majority agrees that
[I]n assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a “reasonable fear” that the judge will not be impartial. Litigants ought not have to face a judge where there is a reason-
able question of impartiality, but they are not entitled to judges of their own choice.
H.R. Rep. No. 93–1453 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355 (emphasis added).
The problem with applying this language to
Congress recognized that parties would attempt to use
The legislative history indicates that Congress recognized that parties would invoke
It is clear from the legislative history that Congress did not intend that there be any discretion not to recuse under
Finally,
II.
In addition to violating
Congress fully anticipated that recusal under
Contrary to what the majority contends, the minimal delay that inevitably occurs when a judge is disqualified and another judge is assigned to the case does not implicate the district court’s power to ensure the orderly administration of justice. In Kleiner, we recognized that district courts “possess the inherent power to protect the orderly administration of justice
In comparison, if the district court’s decision is allowed to stand, the petitioners will have been denied their right to counsel of choice, Price and his law firm will have lost legal fees they would have earned from representing the petitioners in this case, and a clear violation of
Furthermore, our decision in Robinson v. Boeing Co., 79 F.3d 1053 (11th Cir.1996), is clearly inapplicable to the facts of this case. In Robinson, we upheld the district court’s decision to deny the defendant’s request to add Price as counsel after fifteen months of proceedings before Judge Clemon. In so doing, we outlined factors for a trial court to consider “in deciding whether to allow substitute or additional counsel in the exercise of this discretion[, which] include the fundamental right to counsel, the court’s docket, the injury to the plaintiff, the delay in reaching decision, the judicial time invested, the expense to the parties objecting, and the potential for manipulation or impropriety.” 79 F.3d at 1055. These factors, however, are clearly inapplicable to this case. In this case, the trial court never had the occasion to decide whether to allow substitute or additional counsel because Price appeared as BellSouth’s counsel from the outset, eleven days after the complaint was filed. This simply is not a case in which it can be argued that BellSouth chose Price as counsel to force the district court and the respondents to start from scratch with a new judge after expending significant resources.
The majority also relies on McCuin v. Tex. Power & Light Co., 714 F.2d 1255 (5th Cir.1983), and In re FCC, 208 F.3d 137 (2nd Cir.2000), for its position that the right to counsel of choice should be overridden when counsel is retained to force a judge’s recusal. Like Robinson, these cases are inapposite because counsel was retained after the court had invested substantial resources in the case. In McCuin, the defendant retained the judge’s brother-in-law as additional counsel six years after proceedings began before the judge. 714 F.2d at 1258. In In re FCC, the debtor in a bankruptcy proceeding retained the law firm in which one
If the majority is correct that the recusal statute authorizes the disqualification of counsel hired to force recusal of the first judge, this will require an evidentiary hearing before a second judge every time the first judge’s third-degree relative is retained as counsel and the opposing party would like the proceedings to remain before the first judge. Under the majority’s scheme, a party who wants the first judge to stay on the case because of a type of bias not covered by the recusal statute—e.g., ideological bias—will always move to disqualify the relative once he appears as counsel in the case, even if the relative is retained for legitimate reasons long before the complaint is ever filed. In every such case, the motion to disqualify will force an evidentiary hearing before a second judge to determine the party’s motivation for hiring the judge’s relative; this hearing will be necessary even if the motion to disqualify the relative is baseless because the first judge is conflicted and thus cannot rule that the motion is baseless. Also, the first judge will be a material witness, whether or not he is called to testify, regarding the issue of whether his relative was hired to force his recusal. As a witness, the first judge would be open to questioning concerning the bias which has motivated one party to force his recusal and the other party to move to disqualify his relative so that the judge can stay on the case. The reassignment of the motion to disqualify counsel to a second judge for an evidentiary hearing—with the potential that the first judge will be called as a material witness—will cause far more disruption to the district court’s docket than the first judge’s automatic recusal and the random reassignment of the case to another judge. Furthermore, the disruption inherent in the majority’s scheme was not contemplated by Congress, whereas the disruption caused by automatic recusal and random reassignment was obviously an intended consequence of the recusal statute.
To illustrate how problematic the majority’s position is, allow me to posit a hypothetical situation. Assume a case in which the judge’s relative is hired to avoid the judge’s ideology—i.e., his view of the law applicable to the case at hand. The judge is notorious for consistently ruling against the position the party will advance because he harbors an ideological bias against that position. The relative is hired to force the judge’s recusal so that the party can avoid the judge’s ideological bias. The party advancing the position that the judge consistently favors files a motion to disqualify the judge’s relative in an effort to ensure that the case will stay before the judge and the party will benefit from the judge’s ideological bias.
Under the majority’s scheme, the judge confronted with this hypothetical situation would be required to refer the motion to disqualify counsel to the clerk for random reassignment to another judge who would be required to hold an evidentiary hearing on the party’s motivations for hiring the judge’s relative. The breadth of the inquiry before the second judge obviously would admit of evidence of the judge’s ideological bias on the given issue. In the hearing, the party who filed the motion to disqualify the relative would have the burden of proof on his claim that his adver-
Presumably, one goal of the majority’s position is to return the conflicted judge to the case after the second judge concludes from the evidentiary hearing that the party’s motive for hiring the relative was to force recusal of the judge. If the goal were not to return the case to the first judge, then a party could force the recusal of the judge with impunity as long as he is willing to go forward with new counsel, hired in place of the disqualified relative, once the case has been reassigned. On the matter of reassignment to the first judge, however, once it has been established (before the second judge) that the relative was hired so his client could avoid the first judge’s ideological bias against parties advancing his position, reassigning the case to the first judge—in the face of an implicit, if not explicit, finding of ideological bias—would be highly problematical. Following an evidentiary hearing in which the moving party demonstrates that the first judge is likely to be biased in his favor and the relative was hired to avoid this bias, and it appears that the moving party only wants the case returned to the first judge so that he can capitalize on the judge’s bias in favor of his position, there would be, at the very least, a reasonable basis to question the first judge’s impartiality under
At the end of the day, under the majority’s scheme, the lawyer is punished for making an appearance which his client intended to force recusal of the judge, but the client still gets what he wants: a trial before another judge. The majority is concerned that a contrary ruling would encourage the lawyer to sell his relationship to the judge rather than his professional services, but this possibility still exists under the majority’s system. If the client wants to avoid the judge, he will still hire the relative, knowing that he will be
III.
To correct Judge Clemon’s clear violation of
In this case, petitioners have met their burden of showing a clear and indisputable right to relief. They have shown that Judge Clemon had a duty to recuse under
Cynthia CAGLE, as personal representative of the Estate of Danny Ray Butler, deceased, bringing claims on behalf of Danny Ray Butler’s heirs and survivors, Plaintiff-Appellee,
v.
David SUTHERLAND, in his individual capacity, Allen Cole, in his individual capacity, Defendants-Appellants.
Cynthia Cagle, as personal representative of the Estate of Danny Ray Butler, deceased, bringing claims on behalf of Danny Ray Butler’s heirs and survivors, Plaintiff-Appellee,
v.
Winston County, a county in the State of Alabama, Winston County Commission, the governing body of Winston County, Defendants-Appellants.
Nos. 02-13131, 02-13651.
United States Court of Appeals, Eleventh Circuit.
June 18, 2003.